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Child No Longer Had Sufficient Connection to New York State—Custody-Enforcement Petition Properly Dismissed

The Third Department determined mother’s custody-enforcement petition was properly dismissed for lack of jurisdiction because the child no longer had a sufficient connection to New York.  The court noted that both Title II (jurisdiction) and Title III (enforcement) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied:

The mother’s main argument is that Family Court erred in applying title II of the UCCJEA, entitled “[j]urisdiction,” rather than title III, entitled “[e]nforcement.” While title III is not limited to enforcement of out-of-state custody determinations, and its “mechanisms . . . are presumptively available in any enforcement action” (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 77, at 563; see Domestic Relations Law § 77), several of the sections within title III do refer or apply to custody determinations issued by courts in other states (see e.g. Domestic Relations Law §§ 77-b, 77-d, 77-e, 77-l). Similarly, title II has sections dealing with initial custody determinations and modification determinations (see Domestic Relations Law §§ 76, 76-b), neither of which is sought by the petition here, but the title overall is broader than those sections. Simply because the mother’s petition seeks enforcement of a custody determination, rather than modification, does not mean that the title addressing enforcement must be relied upon independently and exclusively, without any possible reference to the title addressing jurisdiction. Instead, courts can apply both the jurisdiction and enforcement portions of the UCCJEA, where applicable.

A New York court that made a child custody determination “has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child, [nor] the child and one parent, . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a [1] [a]). Here, Family Court determined that the child had lived in Georgia with the father for more than two years and all of her medical and educational records and providers are in Georgia . While the mother and other family members reside in New York, the child did not return to New York — for visitation or any other reason — during the years that she was living in Georgia … . Thus, neither the child nor the father had a significant connection with New York, and substantial evidence regarding “the child’s care, protection, training, and personal relationships” is located in Georgia rather than New York (Domestic Relations Law § 76-a [1] [a]). According to the statute, after this determination, New York courts no longer have exclusive, continuing jurisdiction over the divorce judgment determining custody. Due to this determination, Family Court properly dismissed the mother’s petition for lack of jurisdiction … . Matter of Wengenroth v McGuire, 2015 NY Slip Op 02818, 3rd Dept 4-2-15

 

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Appellate Division Should Have Allowed Respondent to Answer Petition After Dismissal of the Petition Was Reversed by the Appellate Division

The Court of Appeals determined the Appellate Division erred when it did not remand an Article 78 proceeding to Supreme Court to allow the respondent university (NYU) to submit an answer to the petition.  The petition was brought by a dental student seeking redress after she was expelled.  Supreme Court dismissed the petition.  The Appellate Division reversed:

The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804 (f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, “the court shall permit the respondent to answer, upon such terms as may be just” … . We have indicated, however, that a court need not do so if the “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … . Since “the motion papers” in BOCES “clearly did not establish that there were no triable issues of fact,” we held that “the procedure dictated by CPLR 7804 (subd [f]) should have been followed” … . For the same reason, NYU should be permitted to answer in this case.

A student subject to disciplinary action at a private educational institution is not entitled to the “full panoply of due process rights” … . Such an institution need only ensure that its published rules are “substantially observed” … . And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Matter of Kickertz v New York Univ., 2015 NY Slip Op 02800, CtApp 4-2-15

 

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Foreign Money Judgment Properly Enforced—Criteria Explained

The Second Department determined Supreme Court properly enforced a Canadian money judgment.  The court explained the relevant analytical criteria:

“Under CPLR article 53, a judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is final, conclusive and enforceable when rendered'” … . “[A] foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money'” … . “However, a foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law’ or (2) the foreign court did not have personal jurisdiction over the defendant'” … . “A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist” … .

The Ontario Superior Court of Justice is part of a judicial system that provides impartial tribunals and procedures compatible with due process of law … and, here, that court had a valid basis for exercising jurisdiction over the defendant, as the defendant purposefully transacted business in Ontario (see CPLR 5305[b]; CPLR 302[a][1]…). Moreover, CPLR 5305(a)(2) provides, in relevant part, that a foreign country judgment “shall not be refused recognition” by New York “for lack of personal jurisdiction if . . . the defendant voluntarily appeared” in the foreign court proceedings for purposes other than “contesting the jurisdiction of the court” over him or her. Although the plaintiff failed to establish that the defendant was properly served with process in the Canadian action …, the plaintiff nonetheless demonstrated that the Ontario Superior Court of Justice had personal jurisdiction over the defendant, as the defendant “voluntarily appeared” in the Canadian action (CPLR 5305[a][2]…) and “did more than [it] had to do to preserve a jurisdictional objection” … .  Gemstar Can., Inc. v George A. Fuller Co., Inc., 2015 NY Slip Op 02726, 2nd Dept 4-1-15

 

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“Intrinsic” Versus “Extrinsic” Fraud as the Basis of a Motion to Open a Default Judgment/Lack of Standing Not a Jurisdictional Defect

In the context of a mortgage foreclosure, the defendant made a motion pursuant to CPLR 5015(a)(3) to open a default judgment.  The Second Department determined the motion was properly denied and explained the difference between allegations of “intrinsic” and “extrinsic” fraud as the basis of the motion.  The court noted that a lack of standing is not a jurisdictional defect:

The defendant alleged, pursuant to CPLR 5015(a)(3), that the plaintiff committed “intrinsic fraud,” by submitting fraudulent documents in support of its claim for a judgment of foreclosure and sale … . She did not allege “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” … . Therefore, the defendant was required to show a reasonable excuse for her default … . However, she failed to offer any excuse for her default … . U.S. Bank, N.A. v Peters, 2015 NY Slip Op 02757, 2nd Dept 4-1-15

 

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Court Properly Declined to Exercise Jurisdiction Over Child Custody/Access Matters Because the Children No Longer Had a Sufficient Connection with New York State

The Second Department determined Supreme Court properly refused to consider child custody/access matters because the children no longer had a significant connection with New York:

New York is the children’s “home state,” since they resided here for six consecutive months before the commencement of the child custody proceeding (Domestic Relations Law § 76[1][a]; see Domestic Relations Law § 76-a…). The judgment of divorce, which determined the parties’ child custody issues, confers continuing jurisdiction over the children with the New York Courts (see Domestic Relations Law §§ 76, 76-a). However, a New York court may decline to exercise jurisdiction where, as here, neither of the parents nor any of the children retain a significant connection with New York and substantial evidence is no longer available in this state concerning the children’s care, protection, training, and personal relationships (see Domestic Relations Law § 76-a[1][a]…). A court may also decline to exercise jurisdiction where it determines that the children or the children’s parents no longer reside in New York (see Domestic Relations Law § 76-a[1][a], [b]…). Under Domestic Relations Law § 76-f, a court may decline to exercise jurisdiction if it determines, after an evaluation of statutory factors, that New York is an inconvenient forum and that another state provides a more appropriate forum … . Here, since the defendant resides in California, and the plaintiff and children moved to Maryland in November 2012, the Supreme Court, after considering the statutory factors set forth in Domestic Relations Law § 76-f(2)(a) through (h), properly declined to exercise jurisdiction over the issues concerning the defendant’s access to the children. Pelgrim v Pelgrim,2015 NY Slip Op 02738, 2nd Dept 4-1-15

 

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No Liability to Third Party Stemming from Contract to Install a Sign

The Second Department determined the plaintiff’s verdict in a slip and fall case was properly set aside.  Plaintiff tripped on a sign that had fallen and was covered by snow.  The evidence did not demonstrate the sign company (Everlast) “launched an instrument of harm” so as to trigger tort liability in favor of a third party arising from a contract.  The analytical criteria were explained:

” [A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party'” … . The Court of Appeals has recognized three exceptions to this rule …, only one of which is pertinent to this case. Under that exception, a party who enters into a contract to render services may be liable in tort to a third party “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'” … .

Here, there was no rational process by which the jury could have found that Everlast launched a force or instrument of harm … . In that respect, there was no direct evidence that Everlast was negligent in installing the sign seven months before the accident. Further, there was no rational process by which the jury could have found in favor of the plaintiff based upon circumstantial evidence, since the plaintiff failed, as a matter of law, to demonstrate that it was “more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Robinson v Limoncelli, 2015 NY Slip Op 02745, 2nd Dept 4-1-15

 

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Interest Pursuant to CPLR 5002 and 5003 Is a Matter of Right Not Dependent Upon the Court’s Discretion or a Demand

The Second Department noted that the defendant who had obtained an arbitration award was entitled to interest on the award pursuant to CPLR 5002 and 5003:

…[P]ursuant to CPLR 5002, the defendant was entitled to prejudgment interest from the date of the arbitration award, April 28, 2009 … . “Interest under CPLR 5002 is a matter of right and is not dependent upon the court’s discretion or a specific demand” … . It “is simply the cost of having the use of another person’s money for a specified period” and is not a penalty on the party owing money … . Accordingly, the defendant was entitled to prejudgment interest accruing from the date of the arbitration award, and to postjudgment interest pursuant to CPLR 5003. Dermigny v Harper, 2015 NY Slip Op 02722, 2nd Dept 4-1-15

 

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Town, Not the Town Board, Was the Proper Party/Town Could Not Use Article 78/Declaratory Judgment to Enforce a Contract/Town Entitled to Specific Performance of Contract

The Fourth Department, in the context of an action by the town for specific performance of a contract with a volunteer fire department, determined: (1) the town, not the town board, was the proper party to bring the action; (2) the hybrid Article 78/declaratory judgment action could not be brought by the town to enforce a contract; (3) the action should have been brought as one seeking specific performance; (4) the town was entitled to specific performance of the contract:

…[T]he Town Board lacks capacity to bring this proceeding/action.  As “artificial creatures of statute,” governmental entities such as the Town Board “have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate” … . Here, Town Law § 65 (1) provides in relevant part that “[a]ny action or special proceeding for or against a town, or for its benefit, . . . shall be in the name of the town,” and that “[t]he town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town” … . Under the circumstances of this case, we exercise our power pursuant to CPLR 2001 to correct that irregularity and to amend the caption by substituting the Town for the Town Board, “on behalf of” the Town … . …

… [A]lthough a CPLR article 78 proceeding may be brought against public or private corporations that “take on a quasi-governmental status” …, such “a . . . proceeding is not the proper vehicle to resolve contractual rights’ ” … . Moreover, a declaratory judgment action is also not a proper vehicle to resolve the contractual rights herein because ” a full and adequate remedy is already provided by another well-known form of action’ ” … . Pursuant to CPLR 103 (c), however, “[i]f a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution.” We thus exercise our discretion under CPLR 103 (c) and convert this hybrid CPLR article 78 proceeding/declaratory judgment action to an action for specific performance … .

“Specific performance is a discretionary remedy which is an alternative to the award of damages as a means of enforcing the contract’ . . . The right to specific performance is not automatic . . . The equitable remedy of specific performance is available in the court’s discretion when the remedy at law is inadequate . . . Finally, . . . the party seeking equity must do equity, i.e., he must come into court with clean hands” … . Here, the Town met its burden of proving that it “substantially performed [its] contractual obligations . . . within the time specified in the [2011 Contract, and] that [it] is ready, willing and able to perform those contractual obligations not yet performed and not waived by the [West Brighton Fire Department (WBFD)]” …, and the WBFD failed to raise a triable issue of fact in opposition thereto … . Matter of Town Bd. of Town of Brighton v West Brighton Fire Dept., Inc., 2015 NY Slip Op 02581, Fourth Dept 3-27-15

 

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Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History

The Fourth Department determined plaintiff’s allegations of injuries in the bill of particulars was not so broad as to place plaintiff’s entire medical history in controversy:

In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy” … . Indeed, that waiver ” does not permit wholesale discovery of information regarding [plaintiff’s] physical and mental condition’ ” … . Contrary to defendants’ contention, the allegations in the bill of particulars that plaintiff sustained “serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering” “do not constitute such broad allegations of injury’ that they place plaintiff’s entire medical history in controversy” … . The court properly conducted an in camera review to redact irrelevant information …, and properly limited disclosure to the “conditions affirmatively placed in controversy” … . Reading v Fabiano, 2015 NY Slip Op 02634, 4th Dept 3-27-15

 

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Felony Convictions in Other Jurisdictions Need Not Have a New-York-Felony Counterpart to Be Considered Under the Persistent Felony Offender Statute

The Court of Appeals, in a full-fledged opinion by Judge Read, determined the persistent-felony-offender statute does not require that felonies committed in other jurisdictions have a felony-counterpart in New York in order to be considered re:  persistent-felony-offender status:

New York’s persistent felony offender statute, by its plain terms, does not require that, in order to classify someone as a persistent felony offender, an out-of-state predicate felony must have a New York counterpart. Section 70.10’s silence with regard to New York equivalency is dispositive. As the Second Circuit explained in Griffin, when holding that section 70.10 was rational as applied to the defendant in that case, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law. Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law” (Griffin, 156 F3d at 290 [emphasis added]…). People v Jones, 2015 NY Slip Op 02553, CtApp 3-26-15